Following a relationship breakdown, whether it is separation or a full divorce the issue of property division is one of the most complex that will arise. It is not a simple 50/50 split of assets, as many think. If you want more information regarding property division and property settlement, contact us so we can give you guidance and further advice!
In property division, “who gets what” will depend on what is counted in the division, which assets are split, and each person’s contribution to those assets.
If you are looking for a fair property settlement, this is what you will need to know.
How are assets split in a divorce?
Firstly, no one should assume that a marital property division will be 50/50. This may be a good starting point to understand the concept of property division. But it is much more complicated than that.
The Family Law Act requires property division to be “just and equitable”. And since everyone’s case is unique and different, your case will always be dealt with on an individual basis.
When dealing with property division, the Court considers 4 steps:
- Identify the marital property pool and the value of all properties owned by the parties;
- Assess the financial and non-financial contributions of the parties;
- Ascertain the individual needs of each party; and
- Divide the parties in a “just and equitable” manner.
Therefore, it is very important to work out what the shared marital property and individual property pool is, between the parties.
When we have sufficient information from you and your ex-partner, regarding the financial and non-financial circumstances, our property settlement lawyers will be able to estimate a ballpark figure for you.
What is counted as marital property?
“Marital property” is a rather loose term. However, it is a very popular term used to describe all the earnings earned by the parties. As well as all the assets and properties purchased within the marriage.
For example, if you bought a house or apartment with your ex-partner, then the house is a joint marital property.
Or, if you have a joint bank account with your ex-partner, and both parties deposit their wages into that bank account, that money is marital property.
What is not counted as marital property?
On the other hand, all the properties owned separately by the parties are not defined as “marital property”. These are the properties not owned or managed or controlled by the other party.
For example, if you bought a unit 10 years ago, got married last year and your relationship ended very quickly, it is likely that the Court will agree that your unit is not a relevant marital property.
If a marriage lasted for a long time, it often becomes less clear whether a property is a relevant marital property or not. It is not as simple as looking at the registered name of the property. For example, if your spouse ran a business under a sole name, but you worked in the business for free, then it is not unlikely that the business becomes a relevant marital asset subject to division.
Contact Times Lawyers and one our property settlement lawyers with your situation. We will be able to advise you in accordance to your circumstance.
What is the process of property settlement?
Property settlements can be done with or without going to court.
Let’s first talk about property settlement without going to court, because it is more favourable.
All property settlements will have to go through this first important step – full and honest financial disclosure. This is where both parties disclosure all their properties and liabilities to the other party, so that both parties can determine what the property pool is.
Then, our property settlement lawyer will negotiate on your behalf, with the other party, an agreement for your property split (without going to court). This step can take a long time, if the parties’ intentions are far apart.
Hopefully, with the assistance of our property settlementent lawyers, the parties are able to agree. Once the parties reach an agreement, we will formalise the agreement for you.
Once the agreement is formalised, it becomes a binding property settlement.
Do I need to go to court to get a property settlement?
Most often it is not necessary to go to court to get a property settlement. This is especially the case if you can reach an agreement with your ex-partner. We in fact recommend that you attempt to reach an agreement without going to court. This is due to courts being time-consuming and expensive.
However, if you’ve attempted to negotiate or mediate with your ex-partner, and still you’re unable to reach a property settlement, then going to Court becomes a necessary step to obtain a property division.
Our property settlement lawyers will act on your behalf at Court, to seek a just and equitable judgment from the Court for your property division.
You need to also be aware of time limitations